The Ethics of Unbundling:
How to Avoid the Land Mines of "Discrete Task Representation" By Helen Hierschbiel

Improving access to justice in the face
of decreasing government funding and rising legal costs
continues to challenge the legal community. Despite
laudable efforts of the access to justice community,
the need for affordable legal services far exceeds
the availability. As a result, many people are resorting
to self-service, addressing their own legal issues
without the assistance or advice of an attorney. Worse
yet, disheartened by the expense of lawyers, but confused
by the legal system, some self-represented parties
turn to non-lawyers for assistance, who in turn may
do more harm than good for the client.

In response to the gap in affordable
legal services, some lawyers have begun to consider
offering "unbundled" legal services, known
more formally as "discrete task" or "limited
scope" representation. The traditional model for
providing legal services is as a single-service product,
which includes advice, fact investigation, legal research,
drafting correspondence and pleadings, negotiation,
representation at hearings, formal discovery and trial.
Unbundling these services means clients select which
legal services they want their lawyers to provide and
to what extent.

Discrete task representation is not new
in the transactional and corporate legal worlds. In
the litigation context, however, providing unbundled
services is less common, perhaps because it can be
more challenging; certainly it demands clearer and
more specific communication with the client. Although
limited scope representation has always been allowed
under the ethics rules, some lawyers have been hesitant
to adopt the practice because of uncertainty and difficulty
in negotiating the ethics issues associated with unbundled
legal services.

Oregon RPC 1.2(b), which has no counterpart
in the former Code of Professional Responsibility,
expressly provides that a lawyer may limit the scope
of representation as long as "the limitation is
reasonable under the circumstances and the client gives
informed consent." Despite this express authorization
for limited scope representation, other rules of professional
conduct seem only to contemplate traditional full-service
representation, thereby creating potential land mines
for lawyers who make efforts to provide unbundled legal
services. Four areas in particular represent continued
concern for lawyers embarking on an unbundled law practice:
misrepresentation; communicating with represented parties;
competence; and communication.

GhostwritingGhostwriting is a practice whereby an attorney
prepares pleadings for a pro se litigant to submit
to court without disclosure of authorship. Lawyers
are understandably reluctant to include their names
on pro se pleadings for fear of being deemed counsel
of record by the court or the opposing party, notwithstanding
their and their clients’ intentions. Ethics opinions
in other jurisdictions are split on the issue of whether
disclosure is required. Those that require disclosure
generally conclude that failure to do so would be misleading
to the court and opposing counsel and would allow the
undisclosed lawyer to avoid responsibility for frivolous
litigation under applicable court rules.1 Others,
including ABA Informal Op. 1414 (1978) (interpreting
the former Model Code of Professional Responsibility),
conclude that misleading the court can be avoided by
disclosing the fact of assistance, but the identity
of the lawyer providing assistance need not be provided.

It is also worthy to note that Oregon
RPC 1.2(d), 3.3(b), 4.1(b) and 8.4(a)(3), all of which
speak to dishonesty or misrepresentation, apply only
to material misrepresentations. The fact of assistance
to a pro se litigant is not material to the merits
of the litigation. Even so, some authorities have expressed
concern because the pleadings of pro se litigants are
held to a less stringent standard than pleadings drafted
by lawyers. Others, however, have concluded that if
the undisclosed lawyer has provided effective assistance,
the fact of the assistance will be evident to the court.
If not, the pro se litigant will not have secured an
unfair advantage. One author explains:

Practically speaking …ghostwriting
is obvious from the face of the legal papers, a fact
that prompts objections to ghostwriting in the first
place.… Thus, where the court sees the higher
quality of the pleadings, there is no reason to apply
any liberality in construction because liberality is,
by definition, only necessary where pleadings are obscure.
If the pleading can be clearly understood, but an essential
fact or element is missing, neither an attorney-drafted
nor a pro se-drafted complaint should survive the motion.
A court that refuses to dismiss or enter summary judgment
against a non-ghostwritten pro se pleading that lacks
essential facts or elements commits reversible error
in the same manner as if it refuses to deny such dispositive
motions against an attorney-drafted complaint.

The question of whether undisclosed ghostwriting
is misleading may be answered in Oregon by the applicable
rules of court. Oregon RPC 3.3(a) prohibits lawyers
from failing to disclose to the court information that
they are required to reveal, and RPC 3.4(c) prohibits
lawyers from knowingly disobeying the rules of a court.
UTCR 2.010(7) requires that all documents submitted
to the court "include the author’s name…and,
if prepared by an attorney, the name and the Bar number
of the author and the trial attorney assigned to try
the case." Pro se litigants are required to disclose
whether they selected and completed documents on their
own or with paid assistance. ORCP 17 also requires
that all pleadings be signed, thereby certifying to
the court that the pleading is not filed for an improper
purpose and that the allegations, denials and other
factual assertions are supported by evidence. Reading
these rules together, it appears that the pro se litigant
must sign the pleadings, but the identity of the lawyer-author
must also be disclosed, in some fashion, on the pro
se pleadings. The local court may indicate a preference
for how lawyers-as-document-preparers should include
their names on pro se pleadings.

Coaching vs. ScriptingAnother valuable unbundled service that lawyers
can provide is consultation and advice on negotiating
a settlement. However, what if the opposing party is
represented by an attorney? Oregon RPC 4.2 prohibits
a lawyer from communicating with a party who the lawyer
knows is represented by another lawyer. RPC 8.4(a)
prohibits a lawyer from violating the ethics rules
through the conduct of another. The purpose of RPC
4.2 is to prevent a lawyer from bypassing the opposing
lawyer to gain an advantage for the client. The rule
does not, however, prohibit a lawyer from allowing
his client to communicate directly with the other party
in the matter, so long as the lawyer does not instruct
his client to convey a particular message. See OSB
Formal Op No 2005-147. While it seems unlikely that
RPC 4.2 would be applied to a situation where a lawyer’s
representation was limited to coaching a client about
negotiation techniques, lawyers may avoid even a risk
of violating this rule by providing only general advice
about the client’s rights and how to negotiate,
not specific instruction on what exactly to say.

CompetenceCompetence is a prevalent issue in the unbundled
law practice in part because the traditional model
of law practice teaches that the only way to handle
a client’s matter competently is to handle it
completely.2 Recall, however, that Oregon
RPC 1.2(b) allows limited scope representation so long
as "reasonable under the circumstances." Limited
representation may be appropriate because the client
has narrowly defined objectives for the representation.
In addition, the terms upon which representation is
undertaken may exclude specific means that might be
available to accomplish the client’s objectives
because, for example, the client thinks such means
are too costly or the lawyer regards them as repugnant
or imprudent. ABA Model Rule 1.2, Comment [6]. Whether
discrete task representation is reasonable in any situation
depends on whether the lawyer can provide competent
and diligent representation given the limitation. Comment
[7] to ABA Model Rule 1.2 puts it this way:

If, for example, a client’s objective
is limited to securing general information about the
law the client needs in order to handle a common and
typically uncomplicated legal problem, the lawyer and
client may agree that the lawyer’s services will
be limited to a brief telephone consultation. Such
a limitation, however, would not be reasonable if the
time allotted was not sufficient to yield advice upon
which the client could rely.

Thus competent advice consists of a combination
of competent substantive advice in answer to questions
asked and the exercise of professional judgment
to determine whether a competent answer can be given
because of the complexity of the question or situation.

The ABA Comment also indicates that the
limited scope of the representation should be considered
when determining whether the lawyer has the legal knowledge,
skill, thoroughness and preparation reasonably necessary
for the representation. Even though a lawyer is handling
a matter competently, malpractice exposure may still
be a concern. See, e.g., Nichols v. Keller, 19 Cal
Rptr 2d 601 (Cal App 1993)(despite the limited
contract between lawyer and client on a workers’ compensation
claim, the lawyer had a duty to advise the client of
the availability of other remedies; failure to alert
the client to a possible third party claim, even when
representation on such a claim falls outside the scope
of the limited representation, may lead to liability).
For an overview on avoiding malpractice liability when
providing unbundled legal services, see Michaelis, Unbundling,
Part II, 59 OSB Bulletin 6 (1999).

CommunicationPerhaps the most important concern for lawyers
who provide unbundled legal services is adequate communication.
Oregon RPC 1.4(b) requires a lawyer to explain matters
to a client "to the extent reasonably necessary" such
that the client can make informed decisions about the
case. In addition, lawyers may provide limited scope
representation only with the client’s informed
consent. RPC 1.2(b). Informed consent denotes agreement
by the client after the lawyer has communicated "adequate
information and explanation about the material risks
of and reasonably available alternatives to" the
limited scope representation. RPC 1.0(g).While RPC
1.2(b) does not require that the client’s consent
be confirmed in writing, a prudent lawyer will get
the client’s signature on a written agreement
for representation that clearly details what services
the lawyer will and will not provide, what tasks the
client is expected to perform, and when the lawyer
will cease providing services. Without such an agreement,
questions can (and inevitably will) arise about whether
a lawyer has improperly withdrawn from the representation
or whether a lawyer has neglected a client’s
case.

ConclusionWhile not without its complications and ethical risks,
limited scope representation is an important and valuable
service that lawyers can provide, particularly for low
and middle income clients. With care, lawyers should
be able to comfortably navigate the ethical considerations
inherent in discrete task representation. The effort
will result not only in the offering of much needed services,
but also in a source of business that remains largely
untapped.

2 Richard Zorza explores the trappings of and assumptions in the traditional model of law practice in his article Re-Conceptualizing the Relationship Between Legal Ethics and Technological Innovation In Legal Practice: From Threat to Opportunity, 67 Fordham L Rev 2659 (1999).

ABOUT THE AUTHORHelen Hierschbiel is deputy general counsel for
the Oregon State Bar. She can be reached at (503) 620-0222,
or toll-free in Oregon at (800) 452-8260, ext. 361,
or by e-mail at hhierschbiel@osbar.org.